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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: Is Amending the Second Amendment the Only Solution to Gun Safety?

By Donald Scarinci, October 03 2022 10:08 am

Gun rights are shifting under the more conservative-leaning U.S. Supreme Court. The justices significantly expanded gun rights with their recent decision in New York State Rifle and Pistol Association v. Bruen, leaving decades of jurisprudence and state gun restrictions with an uncertain future.

In striking down New York’s concealed-carry law, the Court broadly interpreted the Second Amendment’s guarantee of the right “to keep and bear arms” to include the right to carry a handgun outside the home for self-defense. Under the Court’s new standard, lower courts may only uphold gun restrictions if a tradition of such regulation exists in U.S. history.

Critics of the landmark decision argue that the Court’s new framework handicaps states’ ability to pass laws designed to address a predominantly modern issue — firearm injuries and deaths. Gun safety supporters cite several recent acts of gun violence, including a mass shooting at a Buffalo supermarket that left 10 dead, and the tragic deaths of 19 children and two teachers at an elementary school in Uvalde, Texas. While these tragedies prompted Congress to pass the first gun control bill in decades, another (more permanent) option under consideration is amending the Second Amendment.

Text of the Second Amendment

The “right to bear arms” is enshrined in the Second Amendment, which became part of the Constitution in 1791 and applies to the States via the Fourteenth Amendment. It states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Given that the text of the amendment is so vague, the extent that the government may or may not regulate gun ownership has always been somewhat unclear. One of the primary constitutional questions is whether the Second Amendment was intended to protect private, individual gun ownership or the possession of guns by state-run militias.

Gun Rights and the Supreme Court

The U.S. Supreme Court has traditionally found that the Constitution codifies at least some individual gun rights. Prior to Bruen, the Court’s last significant Second Amendment decision was Heller v. District of Columbia in 2008. In Heller, the Court found that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. “The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause,” the Court explained. “The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

 

In Bruen, the Court further expanded individual gun rights to outside the home. Writing on behalf of the majority, Justice Clarence Thomas noted that despite some “well-defined” restrictions, U.S. history reveals no tradition of a broad prohibition on carrying commonly used guns in public for self-defense. He also cited the lack of historical requirements that law-abiding citizens show the type of “proper cause” required by the New York concealed carry law. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” Justice Thomas wrote.

In reaching its decision, the Court expressly rejected the interest-balancing tests routinely employed by lower courts over the past several decades. Rather than weighing the costs and benefits of firearms restrictions, the text, history, and tradition test must now be applied to Second Amendment challenges. “While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here,” Justice Thomas wrote. “The Second Amendment is the very product of an interest balancing by the people, and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.”

Amending the Second Amendment

The Supreme Court’s new standard, particularly its reliance on historical interpretation, may prove challenging for the lower courts. Because the burden falls on the government to show that the regulation is consistent with the historical understanding of the Second Amendment, it is also likely that many state gun laws will not pass muster under the new standard established by the Court.

Given the widely divergent interpretations of the Second Amendment, a natural solution is to simply start over. Former Justice John Paul Stephens has argued that the Second Amendment could be “fixed” by adding five words. His version would state: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Others have proposed a more middle ground, which would involve amending the Second Amendment to protect private ownership of handguns and hunting rifles, while banning military-style assault weapons. Supporters argue that both sides would get a “win,” as well as the assurance that basic gun rights would no longer be subject to the whims of future Supreme Court or Congressional majorities.

However, as discussed in prior articles, amending the Constitution is difficult, even if a consensus could be reached on what the new version of the Second Amendment should be. Amendments must be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. Ratification then requires approval by three-fourths of the States.

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